Is Montana’s Preservation Of Harvest Act Unclear?
By Toby Trigger

Posted: January 31, 2015

Montana’s Preservation of Harvest Act originally became law in 2004 after Montana voters approved the measure with the largest favorable vote for any referendum in the History of Montana.

As a result the wording in Montana’s Constitution under Article 7 Section IV Reads:

Preservation of Harvest Heritage. The opportunity to harvest wild fish and wild game animals is a heritage that shall forever be preserved to the individual citizens of the state and does not create a right to trespass on private property or diminution of other private rights.”

(History: En. Sec. 1, Const. Amend. No. 41, approved Nov. 2, 2004.)

In a telling portrayal of sportsmen support all 12 Republicans on the House FWP Committee recently voted for House Bill 212 and all 7 democrats voted against the bill. House Bill 212 is a bill that would clarify the definition of “harvest” in Montana Code Annotated (MCA) MCA 87-2-101.

Opponents of the bill argued that the wording in the section only refers to “Wild Fish and Wild Game Animals” and therefore the intention of the Preservation of Harvest Heritage was only meant to protect the rights of anglers and hunters pursuing “Game animals”.

“ Game Animals” as defined in MCA 87-2-101 As used in Title 87, chapter 3 is listed as:

(4) “Game animals” means deer, elk, moose, antelope, caribou, mountain sheep, mountain goat, mountain lion, bear, and wild buffalo.

Proponents of the bill including the original bill drafters (from 2003) spoke in favor of the bill citing the original intent of protecting the harvesting of all wild animals including upland game birds, migratory waterfowl, predators, non game species and furbearers which are individually defined under MCA 87-2-101.

Nowhere in the constitution nor the Montana Code Annotated is the term “wild game animals” found except within the Preservation of Harvest Heritage Section of the Montana Constitution. That terminology was purposefully used in the language currently in the constitution to be a broad and sweeping word to encompass all hunting, trapping and fishing opportunities proponents said.

Now that HB 212 has passed out of the House FWP Committee the bill will undergo a similar course of action as it goes through the Senate committee. If it passes out of the Senate it will undergo a final vote and then land on the Governor’s desk who can then either approve, veto or let it sit for 10 days before it automatically becomes law.

If the original intent truly was only to protect the opportunity of Montanan’s to harvest game animals then there would be a lot of sportsmen left out.

According to MCA 87-2-101 the definitions of other harvest species are clearly defined and separate from “Game Animals”.
Take a look for yourself and let us know if you think that Article 7 Section 9 of Montana’s Constitution was only intended for hunters wishing to pursue deer, elk, moose, antelope, caribou, mountain sheep, mountain goat, mountain lion, bear, and wild buffalo –

Or if it was also meant to protect the rights of Montana’s wishing to pursue:

Wild ducks, wild geese, brant, and swans; cranes, including little brown and sandhill; rails, including coots; Wilson’s snipes or jacksnipes; and mourning doves, coyote, weasel, skunk, and civet cat sharp-tailed grouse, blue grouse, spruce (Franklin) grouse, prairie chicken, sage hen or sage grouse, ruffed grouse, ring-necked pheasant, Hungarian partridge, ptarmigan, wild turkey, and chukar partridge marten or sable, otter, muskrat, fisher, mink, bobcat, lynx, wolverine, northern swift fox, and beaver – in addition to game animals.

Is clarifying the intent of our constitution the right thing to do? So far 12 Republican Representatives say YES and 7 Democrats say NO. Read the code below and let us know what you think?

MCA87-2-101. Definitions as used in Title 87, chapter 3, and this chapter, unless the context clearly indicates otherwise, the following definitions apply:

(1) “Angling” or “fishing” means to take or the act of a person possessing any instrument, article, or substance for the purpose of taking fish in any location that a fish might inhabit.
(2) (a) “Bait” means any animal matter, vegetable matter, or natural or artificial scent placed in an area inhabited by wildlife for the purpose of attracting game animals or game birds.
(b) The term does not include:
(i) decoys, silhouettes, or other replicas of wildlife body forms;
(ii) scents used only to mask human odor; or
(iii) types of scents that are approved by the commission for attracting game animals or game birds.
(3) “Fur-bearing animals” means marten or sable, otter, muskrat, fisher, mink, bobcat, lynx, wolverine, northern swift fox, and beaver.
(4) “Game animals” means deer, elk, moose, antelope, caribou, mountain sheep, mountain goat, mountain lion, bear, and wild buffalo.
(5) “Game fish” means all species of the family Salmonidae (chars, trout, salmon, grayling, and whitefish); all species of the genus Sander (sandpike or sauger and walleyed pike or yellowpike perch); all species of the genus Esox (northern pike, pickerel, and muskellunge); all species of the genus Micropterus (bass); all species of the genus Polyodon (paddlefish); all species of the family Acipenseridae (sturgeon); all species of the genus Lota (burbot or ling); the species Perca flavescens (yellow perch); all species of the genus Pomoxis (crappie); and the species Ictalurus punctatus (channel catfish).
(6) “Hunt” means to pursue, shoot, wound, kill, chase, lure, possess, or capture or the act of a person possessing a weapon, as defined in 45-2-101, or using a dog or a bird of prey for the purpose of shooting, wounding, killing, possessing, or capturing wildlife protected by the laws of this state in any location that wildlife may inhabit, whether or not the wildlife is then or subsequently taken. The term includes an attempt to take by any means, including but not limited to pursuing, shooting, wounding, killing, chasing, luring, possessing, or capturing.
(7) “Migratory game birds” means waterfowl, including wild ducks, wild geese, brant, and swans; cranes, including little brown and sandhill; rails, including coots; Wilson’s snipes or jacksnipes; and mourning doves.
(8) “Nongame wildlife” means any wild mammal, bird, amphibian, reptile, fish, mollusk, crustacean, or other animal not otherwise legally classified by statute or regulation of this state.
(9) “Open season” means the time during which game birds, game fish, game animals, and fur-bearing animals may be lawfully taken.
(10) “Person” means an individual, association, partnership, or corporation.
(11) “Predatory animals” means coyote, weasel, skunk, and civet cat.
(12) “Trap” means to take or participate in the taking of any wildlife protected by the laws of the state by setting or placing any mechanical device, snare, deadfall, pit, or device intended to take wildlife or to remove wildlife from any of these devices.
(13) “Upland game birds” means sharp-tailed grouse, blue grouse, spruce (Franklin) grouse, prairie chicken, sage hen or sage grouse, ruffed grouse, ring-necked pheasant, Hungarian partridge, ptarmigan, wild turkey, and chukar partridge.
(14) “Wild buffalo” means buffalo or bison that have not been reduced to captivity.
History: En. Sec. 1, Ch. 238, L. 1921; re-en. Sec. 3681, R.C.M. 1921; amd. Sec. 3, Ch. 77, L. 1923; amd. Sec. 12, Ch. 192, L. 1925; amd. Sec. 6, Ch. 59, L. 1927; re-en. Sec. 3681, R.C.M. 1935; amd. Sec. 1, Ch. 37, L. 1949; amd. Sec. 1, Ch. 36, L. 1951; amd. Sec. 1, Ch. 121, L. 1951; amd. Sec. 1, Ch. 19, L. 1953; amd. Sec. 1, Ch. 34, L. 1959; amd. Sec. 1, Ch. 11, L. 1965; amd. Sec. 1, Ch. 28, L. 1965; amd. Sec. 1, Ch. 46, L. 1971; amd. Sec. 1, Ch. 189, L. 1971; amd. Sec. 1, Ch. 167, L. 1973; amd. Sec. 1, Ch. 27, L. 1974; amd. Sec. 1, Ch. 67, L. 1975; amd. Sec. 1, Ch. 93, L. 1975; amd. Sec. 1, Ch. 113, L. 1975; amd. Sec. 1, Ch. 235, L. 1977; R.C.M. 1947, 26-201; amd. Sec. 6, Ch. 44, L. 1979; amd. Sec. 1, Ch. 46, L. 1979; amd. Sec. 1, Ch. 478, L. 1979; amd. Sec. 1, Ch. 420, L. 1983; amd. Sec. 1, Ch. 568, L. 1985; amd. Sec. 2, Ch. 28, L. 1991; amd. Sec. 5, Ch. 417, L. 1995; amd. Sec. 1, Ch. 84, L. 2003; amd. Sec. 1, Ch. 499, L. 2003; amd. Sec. 43, Ch. 19, L. 2011; amd. Sec. 91, Ch. 258, L. 2011.
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